A Nova Scotia judge has rebuked a Sydney lawyer for overcharging a single father whose young children were badly injured after being hit by a vehicle in a crosswalk.
In a ruling released Thursday, Justice Frank Edwards said lawyer Duncan MacEachern’s requested fee was not reasonable and he did not treat his client – a single father on social assistance – fairly.
“This case is disturbing on a number of levels,” said the Nova Scotia Supreme Court judge. “Mr. MacEachern demonstrates no contrition. In fact, he appears to be indignant about being questioned about his work and, in particular, about his account.”
In July 2014, Anthony Angione’s children were struck in a marked crosswalk in Glace Bay. His 11-year-old daughter suffered fractures of both legs and abdominal trauma, while her eight-year-old brother suffered injuries requiring surgery.
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Angione signed a contingency fee letter with MacEachern that stated the lawyer would get 35 per cent of any award or his billed hours at $300 per hour, whichever figure was higher. Payments were deferred until the conclusion of the case.
The letter also stated that in the event the litigation was unsuccessful, the client would still be responsible to pay the lawyer for his billed hours.
MacEachern settled both claims with Angione’s insurance provider, one in June 2018 and the other in September 2018. The children were awarded $95,000 each.
After MacEachern received compensation for the first claim, he sought compensation for the second, requesting 35 per cent of the settlement figure or his billed hours.
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Edwards ruled that MacEachern’s 35-per-cent contingency fee was excessive and unfair. Moreover, he said the fee agreement did not comply with the court’s policies.
“This was a contingency agreement without an actual contingency. Win or lose, the lawyer would still get paid. That is not the way it is supposed to be,” the judge wrote.
“The lawyer’s premium is only justified when he shares the litigation risks with the client. No win (equals) no fee is the standard.”
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Edwards said the agreement did not account for the substantial duplication of effort in pursuing the claims of both children, and also determined there should have been a joint motion for approval of fees for both claims, which would have saved each child at least $2,000 in fees.
The judge said Angione would not know about the litigation process, and would not know what constitutes a fair and reasonable fee.
He said MacEachern had a professional obligation “not to take advantage (or appear to take advantage) of the other party.”
“Despite the father’s stated satisfaction with the agreement, I was not satisfied that Mr. MacEachern had treated him fairly,” said Edwards.
“This is not an unqualified commercial transaction where it may be fair game for one party to maximize his profit if he can get the other party to agree. This is an agreement between a professional and an inexperienced trusting individual.”
Edwards also said he was not confident that MacEachern’s billed hours were an accurate reflection of the work he did. He reduced his compensation from $19,805 to $15,3000.
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Edwards went on to say he believed $2,000 should have been saved with a joint motion, so he then brought his entitlement down to $8,743.50, and because he was not confident in MacEachern’s billed hours, he then further reduced his outstanding entitlement to $5,000.
“Most disturbing, and perhaps of most far reaching consequence, is his attempt to veil his self-serving engagement letter as a noble attempt to give the poor access to justice,” Edwards wrote.
“The public must understand that this is not a typical contingency fee agreement. This agreement would not be acceptable to the vast majority of practising lawyers.”
The judge noted most contingency agreements provide the financially disadvantaged with access to justice they could not otherwise afford.
He expressed concern that this may not be the first time MacEachern has employed such a contingency letter, and may represent “business as usual” for the lawyer.
“Most lawyers in this line of work accept the litigation risks along with their clients. Sometimes they win big and sometimes they take heavy losses,” the decision said.
“Regrettably, Mr. MacEachern’s conduct of this case may reflect badly and unfairly upon others in the profession.”
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